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Raju Pachvarya Meena vs The State Of Madhya Pradesh Thr on 6 July, 2018

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THE HIGH COURT OF MADHYA PRADESH
MCRC 25553/2018
Raju Pachvarya Meena vs. State of MP
Gwalior, dtd. 06/07/2018
Shri Raj Kumar Singh Kushwah, counsel for the applicant.
Shri B. K. Sharma, Public Prosecutor for the respondent/ State.

Case diary is available.

This is second application under Section 439 of CrPC for grant of
bail. First application was dismissed as withdrawn by order dated
16/01/2018 passed in MCRC 20748/2017.

The applicant has been arrested on 08/07/2016 in connection
with Crime No.193/2016 registered at Police Station Kumbhraj, District
Guna for offence under Sections 363, 366, 376 read with Section 34 of
IPC and Section 3/4 of Protection of Children from Sexual Offences Act,
2012 [in short ” the POCSO Act”].

The applicant is facing trial for offence under Section 363, 366,
376 read with Section 34 of IPC and Section 3/4 of the POCSO Act.

It is fairly conceded by the counsel for the applicant that the
prosecutrix and her mother have been examined and they have
supported the prosecution case although the deposition sheets of the
prosecutrix and her mother have not been placed on record. It is
submitted that the applicant has filed some of the order sheets of the
trial Court, which clearly show that the trial is not progressing and the
witnesses are not turning up and on some dates, the Court was vacant.
In order to substantiate his submission, the counsel for the applicant
has relied upon a judgment passed by the Supreme Court in the case
of Sanjay Chandra vs. Central Bureau of Investigation, reported in
(2012) 1 SCC 40.

Per contra, it is submitted by the counsel for the State that where
the prosecution witnesses have supported the prosecution case, then
the Court instead of releasing the applicant on bail on the ground of
delay in trial, may direct the trial Court to decide the trial, as early as
possible.

Heard the submissions made by the counsel for the parties.
So far as the judgment passed by the Supreme Court in the case
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of Sanjay Chandra (supra) is concerned, the same has been taken note
of by the Supreme Court in the case of Virupakshappa Gouda and
Another vs. State of Karnataka and Another, reported in (2017) 5
SCC 406 and it has been held as under:-

”13. The proposition expounded above, has to be
accepted, but that has to be applied appositely to the
facts of each case. A bail application cannot be
allowed solely or exclusively on the ground that the
fundamental principle of criminal jurisprudence is that
the accused is presumed to be innocent till he is
found guilty by the competent court. The learned trial
Judge has also referred to the decision in Sanjay
Chandra (supra), wherein a two-Judge Bench while
dealing with bail applications, observed thus:-

“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 can be
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 un-
convicted 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 a 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
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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.”

14. Be it noted, though the aforesaid passages from
Sanjay Chandra (supra) case have their relevance but
the same cannot be made applicable in each and
every case for grant of bail. In the said case, the
accused-appellant was facing trial for the offences
under Sections 420-B, 468, 471 and 109 of the IPC
and Section 13(2)read with Section 13(1)(d)of the
Prevention of Corruption Act, 1988. Thus, the factual
matrix was quite different. That apart, it depends
upon the nature of the crime and the manner in which
it is committed. A bail application is not to be
entertained on the basis of certain observations made
in a different context. There has to be application of
mind and appreciation of the factual score and
understanding of the pronouncements in the field.

15. The court has to keep in mind what has been
stated in Chaman Lal v. State of UP (2004) 7 SCC

525. The requisite factors are: (i) the nature of
accusation and the severity of punishment in case of
conviction and the nature of supporting evidence; (ii)
reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant;
and (iii) prima facie satisfaction of the court in
support of the charge. In Prasanta Kumar Sarkar vs.
Ashis Chatterjee and Another, (2010) 14 SCC 496, it
has been opined that while exercising the power for
grant of bail, the court has to keep in mind certain
circumstances and factors. We may usefully reproduce
the said passage:-

“9….among other circumstances, the factors
which are to be borne in mind while considering
an application for bail are:

(i) whether there is any prima facie or
reasonable ground to be believed that the
accused had committed the offence.

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of
conviction;

(iv) danger of the accused absconding or fleeing,
if released on bail;

(v) character, behaviour, means, position and
standing of the accused;

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(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses
being influenced; and

(viii) danger, of course, of justice being thwarted
by grant of bail.”

16. In Central Bureau of Investigation V. Vijay Sai
Reddy (2013) 7 SCC 452 the Court had reiterated the
principle by observing thus:- “While granting bail, the
court has to keep in mind the nature of accusation,
the nature of evidence in support thereof, the severity
of the punishment which conviction will entail, the
character of the accused, circumstances which are
peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the public/State
and other similar considerations. It has also to be
kept in mind that for the purpose of granting bail, the
legislature has used the words reasonable grounds for
believing instead of the evidence which means the
court dealing with the grant of bail can only satisfy
itself as to whether there is a genuine case against
the accused and that the prosecution will be able to
produce prima facie evidence in support of the
charge. It is not expected, at this stage, to have the
evidence establishing the guilt of the accused beyond
reasonable doubt.”

17. From the aforesaid principles, it is quite clear that
an order of bail cannot be granted in an arbitrary or
fanciful manner. In this context, we may, with profit,
reproduce a passage from Neeru Yadav vs. State of
Uttar Pradesh and another (2014) 16 SCC 508
wherein the Court setting aside an order granting bail
observed:-

“The issue that is presented before us is whether
this Court can annul the order passed by the High
Court and curtail the liberty of the 2nd
respondent. We are not oblivious of the fact that
the liberty is a priceless treasure for a human
being. It is founded on the bed rock of
constitutional right and accentuated further on
human rights principle. It is basically a natural
right. In fact, some regard it as the grammar of
life. No one would like to lose his liberty or barter
it for all the wealth of the world. People from
centuries have fought for liberty, for absence of
liberty causes sense of emptiness. The sanctity of
liberty is the fulcrum of any civilized society. It is
a cardinal value on which the civilisation rests. It
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cannot be allowed to be paralysed and
immobilized. Deprivation of liberty of a person has
enormous impact on his mind as well as body. A
democratic body polity which is wedded to rule of
law, anxiously guards liberty. But, a pregnant and
significant one, the liberty of an individual is not
absolute. The society by its collective wisdom
through process of law can withdraw the liberty
that it has sanctioned to an individual when an
individual becomes a danger to the collective and
to the societal order. Accent on individual liberty
cannot be pyramided to that extent which would
bring chaos and anarchy to a society. A society
expects responsibility and accountability from the
member, and it desires that the citizens should
obey the law, respecting it as a cherished social
norm. No individual can make an attempt to
create a concavity in the stem of social stream. It
is impermissible. Therefore, when an individual
behaves in a disharmonious manner ushering in
disorderly things which the society disapproves,
the legal consequences are bound to follow. At
that stage, the Court has a duty. It cannot
abandon its sacrosanct obligation and pass an
order at its own whim or caprice. It has to be
guided by the established parameters of law.”

The Supreme Court in the case of Dinubhai Boghabhai Solanki
vs. State of Gujarat and Others, reported in (2018) 11 SCC 129
has held as under:-

”33. We are not suggesting that Mr. Solanki and his
nephew are the persons responsible for the murder of
Amit Jethwa. That charge which is levelled against
them and other accused persons has to be proved in
the trial by cogent evidence. We are also mindful of
the principle that standard of proof that is required in
such criminal cases is that the guilt has to be proved
beyond reasonable doubt. However, at the same
time, it is also necessary to ensure that trial is
conducted fairly where witnesses are able to depose
truthfully and fearlessly. Old adage judicial doctrine,
which is the bedrock of criminal jurisprudence, still
holds good, viz., the basic assumption that an
accused is innocent till the guilt is proved by cogent
evidence. It is also an acceptable principle that guilt
of an accused is to be proved beyond reasonable
doubt. Even in a case of a slight doubt about the guilt
of the under trial, he is entitled to benefit of doubt.

All these principles are premised on the doctrine that
‘ten criminals may go unpunished but one innocent
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person should not be convicted”. Emphasis here is on
ensuring that innocent person should not be
convicted. Convicting innocence leads to serious flaws
in the criminal justice system. That has remained one
of the fundamental reasons for loading the processual
system in criminal law with various safeguards that
accused persons enjoy when they suffer trials.
Conventional criminology has leaned in favour of
persons facing trials, with the main objective that
innocent persons should not get punished.

34. At the same time, realization is now dawning
that other side of the crime, namely, victim is also an
important stakeholder in the criminal justice and
welfare policies. The victim has, till recently, remained
forgotten actor in the crime scenario. It is for this
reason that “victim justice” has become equally
important, namely, to convict the person responsible
for a crime. This not only ensures justice to the
victim, but to the society at large as well. Therefore,
traditional criminology coupled with deviance theory,
which had ignored the victim and was offender
focussed, has received significant dent with focus
shared by the discipline by victimology as well. An
interest in the victims of the crime is more than
evident now (S.357-A CrPC provides for ‘Victim
Compensation Scheme’ which is inserted by
Amendment Act 5 of 2009 w.e.f. 31-12-2009).
Researchers point out at least three reasons for this
trend. First, lack of evidence that different sentences
had differing impact on offenders led policy-makers to
consider the possibility that crime might be reduced,
or at least constrained, through situational measures.
This in turn led to an emphasis on the immediate
circumstances surrounding the offence, of necessity
incorporating the role of the victim, best illustrated in
a number of studies carried out by the Home Office
(Clarke and Mayhew 1980). Second, and in complete
contrast, the developing impact of feminism in
sociology, and latterly criminology, has encouraged a
greater emphasis on women as victims, notably of
rape and domestic violence, and has more widely
stimulated an interest in the fear of crime. Finally, and
perhaps most significantly, criticism of official
statistics has resulted in a spawn of victim surveys,
where sample surveys of individuals or households
have enabled considerable data to be collated on the
extent of crime and the characteristics of victims,
irrespective of whether or not crimes become known
to the police. It is for this reason that in many recent
judgments rendered by this Court, Rudul Sah vs.
State of Bihar, (1983) 4 SCC 141, there is an
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emphasis on the need to streamline the issues
relating to crime victims.

35. There is a discernible paradigm shift in the
criminal justice system in India which keeps in mind
the interests of victims as well. Victim oriented
policies are introduced giving better role to the victims
of crime in criminal trials. It has led to adopting two
pronged strategy. On the one hand, law now
recognizes, with the insertion of necessary statutory
provisions,expanding role of victim in the procedural
justice. On the other hand, substantive justice is also
done to these victims by putting an obligation on the
State (and even the culprit of crime) by providing
adequate compensation to the victims.( For details
study on this aspect, see Victim Justice- A Paradigm
Shift in Criminal Justice System in India by G. S.
Bajpai and Shriya Gauba (Thomsom Reuters, 2016)
The result is that private parties are now able to
assert “their claim for fair trail and, thus, an effective
‘say’ in criminal prosecution, not merely as a ‘witness’
but also as one impacted”.

Thus, it is clear that while considering the bail application of the
accused, not only the rights of the accused are to be taken note of, but
the rights of the victims are to be protected.

Under these circumstances, where the prosecutrix has supported
the prosecution case, this Court is of the view that the applicant is not
entitled to be released on bail even though he is in jail from
08/07/2016 and near about two years have passed. However, the pre-
trial detention of the applicant cannot be ignored and under these
circumstances, the trial Court is directed to conclude the trial Court
within a period of six months from the date of receipt of certified copy
of this order. If so required, the trial Court may also take coercive steps
against the witnesses for securing their appearance.

With the aforesaid observation, this application is disposed of.
A copy of this order be sent to the concerning Trial Court for
information and compliance.

(G. S. Ahluwalia)
Judge

MKB

MAHENDRA KUMAR BARIK
2018.07.07 13:54:48
+05’30’

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