1. The present application has been filed by the applicant for grant of regular bail under section 439 of the Code of Criminal Procedure, 1973.
2. The applicant is charged with having committed offences under section 302 of Indian Penal Code as well as section 135(1) of Bombay Police Act, for which, FIR being I-C.R.No.49 of 2010 has been registered at Maninagar Police Station.
3. Learned advocate Mr.Ejaz Qureshi for the applicant submitted that there is no eye witness and the statements of witnesses are not recorded. He submitted that it was a case of an affair, which has not been considered, and there is no evidence about 'last seen together'. He also submitted that bail is a rule and jail is in exception and tenor of the argument seem to be that the gravity of offence or other aspects are not tobe considered and he has forcefully argued that the proposition of law is that normally a bail should be granted and it should only be refused in exceptional cases. Relying on judgment of this Court reported in 2004 (3) GLR 2195 in the case of Patel Vishnubhai Shivrambhai vs. State of Gujarat, for which, he has emphasized on the observations made in para-6 " Time and again, the Hon'ble Apex Court has held that grant of bail is rule and refusal is an exception. When the liberty of the person is at stake, the this Court cannot overlook the provision of Art.21 of the Constitution of India. As stated earlier, the trial of the accused is already stayed by the Apex Court, and obviously, it will take time to get over. Therefore, till the trial is over, the accused cannot be kept in jail any more, more particularly, when the evidence of the prosecution witnesses before the trial Court is already over and the matter is at the stage of recording of the statements of the accused persons."
4. He has also referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 1996 SC 2957 in the case of Shaheen Welfare Association vs. Union of India and ors., and submitted that it is the case of personal liberty of an individual and under Article 21 of the Constitution of India, the petitioner is entitled to liberty and he should be released on bail, rather the tenor was that he must be released on bail. He has submitted that reasoning given by the learned sessions judge while rejecting the bail application being Criminal Miscellaneous Application No.2889 of 2010 is also erroneous, as it has been observed that, he has considered the gravity of offence and he is likely to influence the witnesses. He submitted that there are 45 witnesses and, therefore, applicant should be released on bail as his right under Article 21 would otherwise be violated.
5. Learned Additional Public Prosecutor Ms.Manisha Shah has submitted that it is the case of one sided affair where the applicant has done the victim to death who was also serving there and there are statements of witnesses including the owner of the premises/hospital where he was working and the knife has been recovered. She has submitted that applicant has been caught on the spot, and, therefore, there is no question of 'last seen together' theory in light of the material evidence on record. She has further submitted that PM report and the medical evidence including that of accused also clearly point prima facie about his involvement. For that she has referred to the statements as well as PM report of the victim in detail and submitted that cause of death is asphyxia due to strangulation assaulted with the injuries over body and she has referred to the injuries which have been stated in column no.18 which are about 15 in number. Further the injury certificate of the applicant accused has been emphasized by learned APP wherein the history given by the applicant with regard to injury itself is recorded. She, therefore, submitted that considering this evidence and the gravity of offence, the judgment and order passed by the learned sessions judge cannot be said to be erroneous and present application may not be entertained particularly when the charge sheet has been filed and the case has been committed which has been registered as Sessions Case No.259 of 2010. She further submitted that the right of accused under Article 21 also has to be balanced considering the gravity of offence and the interest of the society in such a serious offence. Therefore, present application may not be entertained.
6. In view of the rival submissions, it is required to be considered whether the present application can be entertained or not.
7. It is well accepted that this Court normally is not required to appreciate and scrutinize evidence in detail, at this stage. However, for considering prima facie case suggesting the involvement, the relevant aspects like nature/gravity of offence, manner in which offence is alleged to have been committed, role attributed, weapon used, medical evidence, are required to be considered. Therefore, though it is not necessary to discuss in detail evidence, having heard learned advocate Mr. Qureshi for the applicant and Ms.Shah, learned APP and having considered rival submissions that the documents referred to including the statements, the PM report, injury certificate, there is prima facie evidence suggesting the involvement. Therefore, without any further elaboration, the Court is only required to consider aspect of bail particularly when the case has been committed by the Sessions Court, which has been registered as Sessions Case No.259 of 2010. The another facet of argument which has been emphasized by learned advocate with the tenor that bail is a rule and bail must be granted with other observation, is required to be considered where some of the submissions have been made out of context and without proper perception of law. The much emphasize has been given to submission with regard to liberty under Article 21 is only reflecting the misconception. Though this observation made in a given case, the law precedent makes it very clear that the observation are to be considered in context of facts of the case and it cannot said that proposition is laid down particularly when it is well settled legal position that while deciding such bail application, the gravity of offence is one of the criteria tobe considered couple with the fact that in view of manner in which offence is committed itself is evident from record. Further, even argument based on Article 21 has been considered by the Apex Court in a judgment including the subsequent judgment reported in AIR 2005 SC 921, where it has been observed that,-
"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.
8. Thus, it has been observed by the Apex Court itself that when the liberty of the accused is criteria according to the procedure established by law and under criminal jurisprudence, one cannot claim the right and therefore application of bail is to be considered keeping in view aforesaid relevant circumstances. Even in the judgment of Hon'ble Apex Court in case of State of U.P through CBI v. Amarmani Tripathi, reported in (2005) 8 SCC, relevant criteria has been reiterated and are also referred to this aspect or criteria for grant of bail. Therefore, having regard to the aforesaid relevant circumstances merely because the number of witnesses are there, it cannot be a ground to claim simply bail as a matter of right particularly when the offence is of a serious nature under section 302 of Indian Penal Code. Hence, the present application deserves to be rejected and accordingly stands rejected. Rule is discharged.
(RAJESH H. SHUKLA, J.) Amit Top