IN THE COURT OF SESSIONS FOR GR.BOMBAY AT MUMBAI
BAIL APPLICATION NO.1882 OF 2022
(CNR NO.MHCC020102552022)
Jalaluddin Shaikh
Residing at: Plot No.41, 42/C/2
Bainganwadi , Near 90 Ft.Rd.
Govandi, Mumbai 400043.
Versus
State of Maharashtra
(At the instance of Deonar
Police Station.)
… Respondent.
Ld. Advocate Ms.Puja Yadav @ Mr.Khamani for applicant/accused.
Ld.APP Mr.Ramesh Siroya for the State.
CORAM : HIS HONOUR THE ADDL.SESSIONS JUDGE
SHRI.M.S.KULKARNI (C.R.NO.56)
DATED : 20th August, 2022
(DICTATED AND PRONOUNCED IN OPEN COURT)
ORAL ORDER
1.
This bail application is in respect of C.R.No.509/2022
registered with Deonar Police Station for the offences punishable under
Sections 326, 504 of Indian Penal Code.
2.
Applicant/accused came to be arrested on 6/7/2022 since
then he is in Custody.
3.
The facts of FIR in short are that;
The applicant/accused is childhood friend of the first informant.
As per the allegations of the first informant on 2/7/2022 in the dawn
i.e. at 5.00a.m he had seen the applicant/accused while committing
:2:
theft of mobile from one factory as he and his friends Raja Lightwala
and Ajiz had seen the applicant/accused running away from said
factory. The people from said factory had chased the applicant/accused
but he succeeded to flee away. Then in the dawn at about 4.00am of
3/7/2022 the applicant/accused met the first informant at 90ft wide
road situated at Shivajinagar, Mumbai to request him not to tell anyone
about theft of mobile committed by him. The applicant/accused then
requested the first informant to have a tea with him and so he caused
the first informant to sit in Auto Rikshaw and brought him at Lotus
Junction, GhatkoparMankhurd Link Road. Thereat he stopped the auto
Rikshaw and asked the first informant to proceed to find a tea stall. The
first informant was ahead to the applicant/accused at that time the
applicant/accused coming from backside of the first informant stabbed
the first informant on his stomach with sharp pointed weapon. The first
informant in such situation gave push to the applicant/accused and ran
towards Shivajinagar Police Station, thereat he was inquired and then
sent to the Rajawadi Hospital.
4.
The applicant/accused has asked for bail on the ground
that he has been falsely implicated in the crime. When the incident was
happened in the jurisdiction of Shivaji Nagar Police Station and the first
informant himself disclosed that he had rushed to the Shivaji Nagar
Police Station, the crime came to be registered at Deonar Police Station
at about 8.56a.m. that is after the lapse of 4 hours from the incident,
and there is no explanation for the same. No eyewitnesses has been
disclosed by the first informant to the incident. Nothing has been
recovered from the applicant/accused. So, his continuous incarceration
is violative of under Article 21 of the Constitution of India.
:3:
5.
The prosecution has objected bail on the grounds that
applicant/accused may commit same serious offence in future, the
applicant/accused is not permanent resident of Mumbai, so, he may flee
from justice.
6.
I have heard learned advocate Ms.Puja Yadav and Learned
APP Mr.Siroya for State at length.
7.
IO has disclosed that the long knife has been recovered
from the applicant/accused. In short, the recovery of weapon is over. It
is not stated in the say that investigation is still pending. Case diary was
produced for perusal. IO himself was present. In the case diary, medical
documents of the first informant are available. From these documents it
is not visible that the first informant is still under treatment or the injury
sustained by him is not still recovered. IO could not put on record any
fact to deny bail to the applicant/accused. The only apprehension
expressed by the prosecution is that applicant/accused is not permanent
resident of Mumbai and so he will flee away from justice. Further he
would pressurize witnesses. If stringent conditions are imposed on the
applicant/accused, interest of the prosecution will be served.
8.
The offence punishable under Section 326 of Cr.P.C. no
doubt provides maximum punishment of life imprisonment but the
offence is triable by the judicial Magistrate.
9.
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
:4:
16 laid down as;
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 unconvicted 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.
:5:
15.
In the instant case, as we have already
noticed that the “pointing finger of accusation”
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 nonbailable, is liable to be detained in
:6:
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 of the Constitution, since
the same is same is authorized by law. But
even persons accused of nonbailable 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.
10.
In view of the Judgment, Law laid down by Hon’ble Apex Court, the
applicant/accused is entitled for bail . Accordingly, I pass following order;
ORDER
1.
Bail Application No.1882 of 2022 is allowed.
:7:
2.
Accused/applicant Jalaluddin Shaikh is released on bail in
C.R.No.509/2022 on furnishing PB and SB of Rs. 30,000/(Rs. Thirty
Thousand) with one or two sureties in the same amount.
3.
Provisional cash security of Rs. 30,000/ is allowed which will
remain in force for two months. Meanwhile applicant/accused has to
furnish surety as directed above.
4.
He shall not flee from justice.
5.
He shall not tamper with the evidence and cooperate with the
investigating officer in investigation.
6.
He shall attend Mankhurd Police Station on every Thursday in
between 10.00 a.m. to 11.00 a.m. till filing of chargesheet.
7.
Applicant/accused not to meet the first informant and witnesses
for year.
8.
Bail before trail Court.
9.
Bail Application No.1882/2022 stands disposed off accordingly.
(M.S.Kulkarni)
Addl.Sessions Judge,
City Civil and Sessions Court,
For Greater Bombay
Date : 20.08.2022.
Dictated on
:
Typed on
:
Draft checked on :
Retyped on
:
Signed on
:
20.08.2022.
23.08.2022.
25.08.2022
28.08.2022
29.08.2022
:8:
“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
: 29.08.2022 at 5.00 p.m.
: Mrs.Jyoti R. Mane
NAME OF THE JUDGE
HHJ SHRI.M.S.Kulkarni
(C.R.No.56)
Date of Pronouncement of Order
20.08.2022
Order signed by the P.O. On
29.08.2022
Order uploaded on
29.08.2022