Partosh Kumar @ Partosh Kumar Yadav v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.52296 of 2019 Arising Out of PS. Case No.-240 Year-2019 Thana- AKBARPUR District- Nawada ====================================================== Partosh Kumar @ Partosh Kumar Yadav, Son of Rajendra Yadav @ Rajo Yadav Resident of Village - Teyar Mahuli, P.S.- Akbarpur, District- Nawada ... ... Petitioner/s

Versus

THE STATE OF BIHAR ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Arjun Prasad, Advocate For the Opposite Party/s :

Mr. Akbar Ali, APP ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL ORDER 16-11-2019 In relation to an offences under Sections 341, 323, 324, 325, 307, 504, 506/34 of the Indian Penal Code, FIR No. 240 of 2019 dated 15.06.2019 stood registered at the Police Station Akbarpur, District Nawada, Bihar.

Attention of this Court is invited to the fact that petitioner is involved in yet another crime in relation to which prayer for pre-arrest bail stands allowed by this Court, vide order dated 19.08.2019 passed in Criminal Appeal (SJ) No.3363 of 2019.

Case record reveals that petitioner is involved in a serious crime. The complainant was assaulted as a result of which he sustained serious injuries both on the jaw resulting into uprooting of teeth and other parts of the body. Learned counsel for the petitioner contends that there

2/8 is delay in the registration of the FIR and it is a bounded dispute of a civil nature, in relation to which, litigation is already pending. None of these contentions weighed with the Court in granting the relief. The Title Suit pertains to the year 2016 and the incident took place in June, 2019. That apart, even if complainant is harbouring any animosity against the petitioner, it would not entitle the latter to take law in his hands. It is not the petitioner's case that the complainant was the assailant. It is a case where the complainant has been assaulted by several persons. The incident took place during broad-day-light in the presence of several persons.

It is seen that the complainant is an illiterate rustic villager. He cannot even write. It is not that he readily had access to justice or was conversant with the procedures of law. As such in the attending facts and circumstances, delay in the registration of the FIR cannot be a reason sufficient enough to grant bail.

Learned APP seriously opposes the instant petition for grant of pre-arrest bail.

It is settled law that the grant to bail is the discretion of the court but the discretion must be exercised not in opposition to, but in accordance with the well established principles of law.

3/8 The law laid down in Gudikanti Narasimhulu Versus public prosecutor, 1978 (1978) 1 SCC 240 by Justice Krishna Iyer explains the judicial discretion as- the unspoken but inescapable, silent command of our judicial system, and those who exercise it will remember that discretion when to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humor, it must not be arbitrary, vague and fanciful, but legal and regular.

The Apex court in case titled- Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281 and State of U.P through CBI v. Amar Manik Tripathi (2005) 8 SCC 21 held that the matter to be considered in an application for bail are.... (A) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence (B) Nature and gravity of the charge-sheet (C) Severity of the punishment in the event of conviction. (D) danger of the accused absconding or fleeing if released on bail (E) Character, Behaviour, means, position and standing of the accused (F) Likelihood of the offence being repeatedly reasonable apprehension of the witnesses being tampered with and (G) danger, of course, of justice being thwarted by grant of bail.

Grant of bail though being a discretionary order-

4/8 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 reason cannot be sustained. Needless 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 by that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances was ranting the grant of bail. The nature of the offence is one of the basis consideration for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

In Prasanta Kumar Sarkav Vs Ashish Chatterjee (2010) 14 SCC 496, the Hon'ble Supreme Court has summarized the basic principles laid down in catena of judgments on the point of granting bail. The Hon'ble Supreme Court proceeded to enumerated the following factors: . ... 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 believe that the accused had committed the

5/8 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;

(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."

In the case titled- State of Orissa v. Mahimananda Mishra JT 2018(9)SC 186 it was held that at the time of considering the bail application, the court must take into account certain factors such as the existence of prima facie case against the accused, gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tempering of the witnesses and obstructing the court as well as the criminal antecedents of the accused. It is also well settled that the court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of the prima facie case against the accused.

Honble Apex court in Cr. Appeal No. 1340 of 2019, titled Shri P. Chidambaram Versus Directorate of Enforce-

6/8 ment, decided on 05.09.2019, relevant paragraphs whereof are reproduced hereinafter:- "67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.

72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By the CBI versus Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:- "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information's and also materials which would have been concealed.

Success in such interrogation would elude if the suspected person knows that he is well protected and

7/8 insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, the Supreme Court held as under:- "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.

In Vilas Pandurang Pawar Versus State of Maharastra (2012) 8 SCC 795 also it was held that while considering application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of evidence on record. It is seen that the complainant has sustained three major injuries on the vital parts of the body. Also the present petitioner is involved in another case bearing Akbarpur P.S. Case No.224 of 2019 registered under Sections 341, 323, 354B,

8/8 452, 504 and 506/34 of the Indian Penal Code and 3(1) (r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,1989 and it is not his first offence. As such, this Court finds no reason sufficient enough to grant pre-arrest bail application of the present petitioner, which is, accordingly, dismissed.

Interim order dated 22.08.2019 stands vacated. (Sanjay Karol, CJ) Sunil/- U T