SUNIL SINGH @ SUNIL KUMAR SINGH vs STATE OF UTTARAKHAND

V.K. Bist, J

1. Heard Mr. Prabhakar Joshi, Advocate for the applicant and Mr. Pankaj Joshi, Brief Holder for the State of Uttarakhand.

Applicant Sunil Singh @ Sunil Kumar Singh, who is in jail in connection with Case Crime No. 100 of 2017, Under Section- 370(2), 120-B, 354,

340,376 (2)(d) of I.P.C. and Section 5(g)(m)/6, 7/8 of the Protection of Children from Sexual Offences Act, 2012 and Section 4,5,6 of the Immoral

Traffic (Prevention) Act, 1956, registered at P.S. Kankhal, District Haridwar, has sought his release on bail.Â

Learned counsel for the applicant submitted that the applicant has falsely been implicated in the instant crime. He submitted that the prosecutrix

has stated different things at different level and, every stage, she was telling lie. He submitted that mere mentioning the name of the applicant in the

F.I.R. that the applicant sold her to a lady, does not prove the fact that the applicant was the same person who sold the girl. He submitted that, in

absence of the Test Identification Parade, no inference can be drawn against the applicant. He submitted that, even in the medical examination of

the prosecutrix, no spermatozoa were found dead or alive. Thus, it cannot be said that rape was committed. He submitted that whatever the

prosecutrix has stated in the statement recorded under Section 164 Cr.P.C. has not been stated by her in the statement recorded under Section 161

Cr.P.C., therefore, those statements of the prosecutrix should not be considered as true.Â

Learned counsel for the applicant referred to  paragraphs 3, 5, 6 & 7 of the judgment of the Hon’ble Apex Court in the matter of Data

Ram Singh Vs. State of Uttar Pradesh & Anr., reported in 2018 SSC Online SC 88. Paragraph Nos. 3, 5, 6 & 7 of the said judgment read as

under:-

“3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial

discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally

there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused

person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor

that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social

and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand

Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab

in which it is observed that it was held way back in Nagendra v. King-Emperor that bail is not to be withheld as a punishment. Reference was also

made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore

age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.Â

However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion

of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately.

Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.â€​

He further referred to the judgment of the Hon’ble Apex Court in the matter of Nikesh Tarachand Shah Vs. Union of India and another,

reported in AIR 2017 SC 5500. Paragraph Nos. 10 to 15 of the said judgment read as follows:-

“10. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows:Â

“No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other

way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.â€​Â

It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 1215, was annulled by Pope Innocent III

in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and

his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminster of 1275, King Edward I repeated the

injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a

matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called

the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct

military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A

number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as “the Five

Knightsâ€. Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other

four fought on. The King’s Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice’s order

was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it

came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of

Right stating, “let right be done as is desired by the petitionâ€. Among other things, the Petition had prayed that no free man should be imprisoned

or detained, except by authority of law.Â

In Bushel’s case, decided in 1670, Chief Justice Sir John Vaughan was able to state that, “the writ of habeas corpus is now the most usual

remedy by which a man is restored again to his liberty, if he have been against law deprived of it.†Despite this statement of the law, one Jenkes was

arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from

pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who

sent him to the King himself, who, “immediately commanded that the laws should have their due course.†(See Jenke’s case, 6 How. St. Tr.

1189 at 1207, 1208 (1676)). It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act of 1679. This

Act recited that many of the King’s subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The

Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King’s Bench Judges subject to penalties for non-

compliance.Â

The next great milestone in English history is the Bill of Rights of 1689, which was accepted by the only Dutch monarch that England ever had,

King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression “excessive bail ought not to be

required….â€​ first appears in Chapter 2, clause 10.Â

What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons

could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US

Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US

Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, “excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflictedâ€. We may only add that the Eighth Amendment has been read into Article 21 by a

Division Bench of this Court in Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61.Â

In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out with great felicity as follows:-Â

“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 v. King-

Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] 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 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 [AIR 1931 All 504 :

33 Cri LJ 94] 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. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ 1271] 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.Â

Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri)

115] that: (SCC p. 242, para 1)Â

“... 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 sensitized 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.â€​

In Gurcharan Singh v. State (Delhi Administration) [(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)Â

“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.â€​Â

30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para 39), it is stated:Â

“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.â€​Â

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.â€​Â

By referring the above paragraphs of the abovementioned judgments, the learned counsel for the applicant submitted that, grant of bail is the rule

and refusal is the exception and, while considering the bail application, liberal view should be adopted. He submitted that it is the applicant, if bailed

out, will be in the best position to look after his own case than other persons. He submitted that it is a fit case, where bail should be granted to the

applicant.

Learned Brief Holder vehemently opposed the bail application. He submitted that specific role has been assigned to the applicant. He referred

to the First Information Report, in which it is written that a man took the prosecutrix from New Delhi Railway station to other places and left her with

a man named as Sunil. There she remained for 20 days. Thereafter, Sunil took her to Haridwar and sold her to one lady. He also referred to the

statement of the prosecutrix recorded under Section 164 Cr.P.C., in which she has categorically stated that one Niranjan took the prosecutrix to her

home and she sold the prosecutrix to her elder brother, namely, Sunil. Sunil asked them to do dirty work, then Niranjan agreed for the same and

made physical relations with Sunil. But, when the prosecutrix refused, she was brutally beaten. After assaulting her, she was compelled to make

physical relations with one Jaiveer. Thereafter, everyday, he compelled her to do that dirty work with different persons and, on refusal, she was

being brutally beaten. Seveneight days before her statement, three persons, namely, Sunil, Kundan, Jaiveer took her and Niranjan to Haridwar and

sold them to Urmila. He submitted that applicant is the same Sunil.

I have carefully considered the submissions advanced by the learned counsel for the parties and have perused the papers available on record.

The Hon’ble Supreme Court, in the matter of Virupakshappa Gouda and another Vs. State of Karnataka & another, reported in (2017) 5 SCC

406, has summarized the principles for grant of bail. Paragraphs 15 to 19 of the said judgment are being referred hereinafter:

“15. The court has to keep in mind what has been stated in Chaman Lal vs. State of U.P. and another. 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, 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:Â

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

(ii) nature and gravity of the accusation;Â

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

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

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

(vi) likelihood of the offence being repeated;Â

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

(viii) danger, of course, of justice being thwarted by grant of bail.â€​Â

In Central Bureau of Investigation vs. V. Vijay Sai Reddy, the Court had reiterated the principle by observing thus:-Â

“34. 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.â€​Â

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, wherein the Court setting aside an order granting bail

observed:-Â

“16. 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 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.â€​Â

In this context what has been stated by a three-Judge bench in Dinesh M.N. (S.P.) v. State of Gujarat is quite instructive. In the said case, the

Court has held that where the Court admits the accused to bail by taking into consideration irrelevant materials and keeping out of consideration the

relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order.Â

In the instant case, as is demonstrable, the learned trial Judge has not been guided by the established parameters for grant of bail. He has not kept

himself alive to the fact that twice the bail applications had been rejected and the matter had travelled to this Court. Once this Court has declined to

enlarge the appellants on bail, endeavours to project same factual score should not have been allowed. It is absolute impropriety and that impropriety

call for axing of the order.â€​

Though it is true that bail is the rule and jail is the exception and liberal approach should be adopted while considering the bail; but, it is also equally

true that the Judge, who is dealing bail application, is the best person to evaluate the facts of the case and then exercise his discretion. Only thing is

that, he should exercise his discretion judiciously.

In the case at hand, after considering the statement of the girl recorded under Section 161 and 164 Cr.P.C., I am not inclined to grant bail to the

applicant. Nature of allegation is serious, it not only affects the victim; but, also the society. Consequently, the bail application is rejected. It is,

however, clarified that, while conducting the trial, the trial Court will not be influenced in any manner by the observation made by this Court in this

order and will decide the case independently on the basis of evidence adduced by the parties.Â