IN THE COURT OF SESSIONS FOR GR.BOMBAY
AT BOMBAY
BAIL APPLICATION NO.1715 OF 2022
Irshad Imtiyaz Shaikh
Age : 22 years
R/a: Sanjay Nagar, Part No.2,
Galli No.I, Room No.36, Road No.09,
90 feet Road, Shivaji Nagar,
Govandi, Mumbai-400 043.
… Applicant/Accused
Versus
State of Maharashtra
(At the instance of Shivaji Nagar
Police Station.)
… Respondent.
Ld. Advocate Mr.M.A.Shaikh for applicant/accused.
Ld.APP Mr. Bankar for the State.
CORAM : HIS HONOUR THE ADDL.SESSIONS JUDGE
SHRI.M.S.KULKARNI (C.R.NO.56)
DATED : 6th August, 2022.
(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
.
This bail application is in respect of C.R.No.731/2022
registered with Shivaji Nagar Police Station dated 7.7.2022 for the
offences punishable under Sections 307, 504, 506 of the I.P.Code and
Section 37 (1) (a), 135 of the Maharashtra Police Act.
2.
The accused was arrested on 8.7.2022, since then he has
been behind bar.
3.
The FIR was in short discloses that the first informant
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(victim) is the carpenter. After work of carpentry he used to seat with
his friend on the platform of his house.
As a routine on 6.7.2022
around 8.00 p.m., the first informant completed his work of carpentry
and he was on the platform of his house with his friend Ikrar Shaikh in
between 8.30 p.m to 9.00 p.m. Meanwhile the applicant/accused came
thereat and started to demand Rs.300/- which he had given to some
one of the friends of the
first informant namely Ikrar Shah.
Ikrar
Shaikh was unable to pay the said amount but as the applicant/accused
need to said amount he started to abuse Ikrar . The first informant
giving reason that ladies are in the house asked applicant/accused not
to hurl abuses. So the applicant/accused went at some distance and
wherefrom he started to again hurl abuses to Ikrar.
When the first
informant went at the applicant/accused ask him to stop abusement,
the applicant/accused saying that whether he has becoming gunda
(bhai) of the area and he would not spare him took out sharp knife
from his pocket and stabbed the first informant towards his right chest
and immediately ran away from the spot. Since the first informant
suffered giddiness due to bleeding injury, he was immediately shifted to
the Shatabdi Hospital. Wherefrom he was admitted to Sion Hospital.
Whereat on 7.7.2022, he lodged F.I.R.
4.
The applicant/accused has asked for bail on the grounds
that; he has been falsely implicated; investigation is already over; FIR is
fabricated, manipulated. In fact on relevant date the first informant had
been at the house of the applicant/accused along with his 3-4 associates
and they assaulted him using filthy language and he had sustained
injuries on all his body parts. The first informant has been discharged
from hospital and he is out of danger.
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5.
The prosecution has objected the bail on the ground that
the applicant/accused and first informant are known to each other. So
if the applicant/accused is released on bail, he would commit the same
offence against the first informant and prosecution witnesses.
The
applicant/accused would tamper with the prosecution evidence and he
would flee from justice.
6.
On 21.7.2022 when the bail application was for argument,
APP strongly submitted that though the first informant has taken
discharge from the Sion Hospital he is still facing serious problem. He
is unable to breath. Considering his submission, APP was directed to
put on record medical documents of the first informant.
Today the IO
has put on record the medical documents of the first informant, where
from it appears that after getting discharge from the Sion Hospital on
18.7.2022, the first informant started to take treatment of Dr. Deepa
Oswal. The report dated 27.7.2022 of Dr. Vikas discloses that the first
informant was feeling much better than before. No serious complaint
was there from the first informant. From the say of the IO it is visible
that investigation is near about to complete, as nothing has been
mentioned about further investigation in the say.
The objection to the
bail only on the ground that applicant/accused commit same offence, he
would tamper with the prosecution evidence and he may flee from
justice.
All these grounds cannot be taken to deny the bail to the
applicant/accused which is his right.
7.
In the case of Hon’ble Apex in Sanjay Chandra Vs. Central
Bureau of Investigation 2012 CRI.L.J.702 through para Nos.14,15 and
16 it is laid down as;
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14.
In bail applications, generally, it has
been laid down from the earliest times that the
object of bail is to be 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.
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 persona 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. 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 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.
15.
In the instant case, as we have already
noticed that the “pointing finger of accusation”
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against the appellants is ‘the seriousness of the
charge’. The offences alleged are economic
offences which has resulted in loss to the State
Exchequer. Though, they contend that there is
possibility of the appellants tampering
witnesses, they have not placed any material in
support of the allegation.
In our view,
seriousness of the charge is, no doubt, one of
the relevant considerations while considering
bail applications but that is not the only test or
the factor: The other factor that also requires
to be taken note of is the punishment that
could be imposed after trial and conviction,
both under the Indian Penal Code and
Prevention of Corruption Act. Otherwise, if the
former is the only test, we would not be
balancing the Constitutional Rights but rather
“recalibration of the scales of justice”. The
provisions of Cr.P. C. confer discretionary
jurisdiction on Criminal Courts to grant bail to
accused pending trial or in appeal against
convictions
since
the
jurisdiction
is
discretionary, it has to be exercised with great
care and caution by balancing valuable right of
liberty of an individual and the interest of the
society in general. In our view, the reasoning
adopted by the learned District Judge, which is
affirmed by the High Court, in our opinion, a
denial of the whole basis of our system of law
and normal rule of bail system. It transcends
respect for the requirement that a man shall be
considered innocent until he is found guilty. If
such power is recognized, then it may lead to
chaotic situation and would jeopardize the
personal liberty of an individual. This Court,
in Kalyan Chandra Sarkar Vs. Rajesh Ranjan
(2005) 2 SCC 42: (AIR 2005 SC 921),
observed that “ 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
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detention cannot be questioned as being
violative of Article 21 of the Constitution, since
the same is same is authorized by law. But
even persons accused of non-bailable offences
are entitled to 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 by
reasons to be recorded that in spite of the
existence of prima facie case, there is need to
release such accused on bail, where fact
situations require it to do so.
16.
This court, time and again, has stated
that bail is the rule and committal to jail an
exception. It is also observed that refusal of
bail is a restriction on the personal liberty of
the individual guaranteed under Article 21 of
the Constitution. In the case of State of
Rajasthan Vs. Balchand, (1977) 4 SCC 308:
(AIR 1977 SC 2447), this Court opined:
“2. The basic rule may perhaps be tersely put
as bail, not jail, except where there are
circumstances suggestive of fleeing from justice
or thwarting the course of justice or creating
other troubles in the shape of repeating
offences or intimidating witnesses and the like,
by the petitioner who seeks enlargement on
bail from the Court. We do not intend to be
exhaustive but only illustrative.
3. It is true that the gravity of the offence
involved is likely to induce the petitioner to
avoid the course of justice and must weigh
with us when considering the question of jail.
So also the heinousness of the crime. Even so,
the record of the petitioner in this case is that,
while he has been on bail throughout in the
trial court and he was released after the
judgment of the High Court, there is nothing to
suggest that he was abused the trust placed in
him by the court; his social circumstances also
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are not so unfavourable in the sense of his
being a desperate character or unsocial
element who is likely to betray the confidence
that the court may place in him to turn up to
take justice at the hands of the court. He is
stated to be a young man of 27 years with a
family to maintain. The circumstances and the
social milieu do not militate against the
petitioner being granted bail at this stage. At
the same time any possibility of the absconsion
or evasion or other abuse can be taken care of
by a direction that the petitioner will report
himself before the police station at Baren Once
every fortnight.”
8.
As noted above no medical report as such put on record by
the prosecution showing that the first informant is still suffering from
injuries sustained in the crime.
For near about one month
applicant/accused is behind bar. If some stringent conditions are put on
record with heavy surety, purpose of the prosecution will be safe
guarded. Hence order;
ORDER
1.
Bail Application No.1715 of 2022 is allowed.
2.
Applicant/accused Irshad Imtiyaz Shaikh is released on bail in
C.R.No. 731/2022 on furnishing PB and SB of Rs. 50,000/-(Rs. Fifty
Thousand) with one or more sureties in the like amount.
3.
Provisional cash security of Rs. 50,000/- is allowed which will
remain in force for two months. Meanwhile applicant/accused has to
furnish surety as directed above.
4.
Applicant/accused shall not flee from justice.
5.
Applicant/accused shall not tamper with the evidence and cooperate with the investigating officer in investigation.
6.
Applicant/accused shall attend Shivaji Nagar police Station on
every Monday and Tuesday in between 10.00 a.m. to 11.00 a.m. till
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filling of the charge-sheet.
7.
Applicant/accused shall not visit the house of the first informant
for one year.
8.
Bail before trail Court.
9.
Bail Application No.1715/2022 stands disposed off accordingly.
Date : 06.08.2022.
Dictated on
Typed on
Draft checked on
Retyped on
Signed on
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06.08.2022.
17.08.2022.
17.08.2022
18.08.2022
18.08.2022
(M.S.Kulkarni)
Addl.Sessions Judge,
City Civil and Sessions Court,
For Greater Bombay
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
: 18.08.2022 at 01.17 p.m.
: Mrs.Prajakta K. More
NAME OF THE JUDGE
HHJ SHRI.M.S.Kulkarni
(C.R.No.56)
Date of Pronouncement of Order
06.08.2022
Order signed by the P.O. On
18.08.2022
Order uploaded on
18.08.2022