CNR MHNS010046282020 CR. No. I­374/2020, Bhadrakali Police Station, Nashik, District : Nashik
registered under section 307 and 504 of the IPC.

Order below Exh.1 in Cri. Bail Application No.1694/2020.

{ Premchand Harichand Chouhan Vs. State }

The second bail application is filed under section 439 of the Code of Criminal Procedure, 1973 ( for short ‘the Cr.P.C.’) by the applicant­accused Premchand Harichand Chouhan, arrested on 26.08.2020 in connection with C.R. No. I­374/2020, dated 26.08.2020, filed with Bhadrakali Police Station, Nashik, District Nashik, for the offences punishable under section 307 and 504 of the Indian Penal Code ( for short ‘the IPC). He is in magisterial custody remand since 27.08.2020.

2.The application has been preferred on the grounds that the applicant­accused is falsely implicated in this crime. He has not committed any offence. The offence under section 307 of the IPC is not at all attracted. There is no recovery pending. No purpose would serve by keeping the applicant­accused behind bars. Investigating is completed. Charge­sheet is filed. He is ready to abide with any condition imposed by this court. Hence, bail be granted to the applicant­accused.

3.The learned APP Mr. R.L. Nikam has filed say at Exh.

04. He has opposed the bail application on the grounds that the injured Latesh Dilip Upadhye is serious injured. There is ample evidence against the applicant­accused. The weapon as well as clothes of the applicant­accused are seized from him. The applicantaccused is resident of other than Maharashtra State. Therefore, he would flee from justice. He would pressurize the witnesses. He would commit similar offences. Hence, bail may not be granted to the applicant­accused.

4.Heard both the sides. Perused the case diary and police papers. Learned APP Mr. R.L. Nikam and learned Advocate Mr. A.K. Kale have advanced their respective arguments as per their contentions.

5.Amidst the above rival contentions it is to be decided as to whether the applicant­accused has made out a genuine case for his enlargement on bail. Before adverting to the circumstances of investigation and case, it would be appropriate to mention in short the facts leading to impleadment of the applicant­accused.

6.Briefly stated as per FIR dated 26.08.2020, on 25.08.2020 at about 11.00 pm, the injured was at his home. He told the tenants next to his house to keep silence and pay the arrears of rent. On this count, his tenant, the applicant­accused abused him.

He assaulted the injured Latesh by a vegetable cutter knife on his neck and attempted to kill him. FIR came to be registered accordingly.

7.During investigation, a vegetable cutter knife as well as clothes of the applicant­accused were seized from him in memorandum panchanama. As per the injury certificate there are following injuries on the person of the injured.

1.Deep CLW with heavy bleeding with injury to external jugular vein – 8 x 3 x 2 cm deep., Grievous in nature.

2.CLW – left side of cheek – 6 x 0.5 cm., Grievous in nature.

8.Thus considering the above evidence, the name of the applicant­accused is mentioned in the FIR. His role of inflicting blow on the neck of the injured is clearly spelt out. Knife as well as blood stained clothes are seized from him. Therefore, prima­facie there is evidence and well founded allegations against the applicantaccused.

9.The first bail application was rejected vide order dated 16/09/2020. The investigation was incomplete then. As of now charge­sheet is filed. Its number is RCC 1396/2020, as submitted.

Regarding filing of charge­sheet as substantial change of circumstance, in case of Laxman Irappa Hatti and another Vs.

State of Maharashtra, 2004 (4) Mh.L.J. 415, it has been held by the Hon’ble Bombay High Court that :­
“ However, after filing of the chargesheet, this approach changes and the court, apart from merits of the case, requires to consider whether the accused should be continued in custody even after the investigation is over. This change, in the approach of the Court after filing of the chargesheet towards evaluating the need of keeping the accused in custody, should be termed as substantial change. It is open for the Court to take similar view which was taken while rejecting earlier application for bail made before filing of the chargesheet. However, in my opinion, it is not open for the Court to hold that the filing of the chargesheet is not a substantive change of circumstance and refused to enter into merits of the case. The Court is obliged to consider merits of the case afresh by allowing the applicant or his advocate to argue an application for bail on the basis of documents supplied to the accused with the chargesheet as required under section 207 of Criminal procedure Code.”
In view of the ratio laid down in Laxman Irappa Hatti,
cited supra, it is clear that the case can be considered afresh on merits by allowing the applicant or his advocate to argue the bail application on the basis of documents (copy of charge­sheet in our case) supplied to him.

10.The investigation is completed, charge­sheet is filed. Injured is discharged from the hospital. There is no record that he is yet under medical treatment for any life threatening injury. There are no grounds in the say of I.O. that the physical custody of the applicant­accused is necessary, hereinafter for any purpose of investigation.

11.There is no record of previous conviction or criminal cases filed against the applicant accused given by the police.

Therefore, the criminal antecedents of the applicant­accused are not seen on record. In the charge­sheet also nothing in this context is mentioned.

12.The applicant accused is in MCR since 27/08/2020. Hence, for almost 3½ months the applicant accused is in jail. Though charge­sheet is filed, committal of case and trial would take its own time.

13.In the case of Sanjay Chandra Vs. CBI, Criminal Appeal No. 2178 of 2011 (arising out of SLP (Cri) No. 5650 of 2011) decided on 23 November, 2011, the Hon’ble Supreme Court has observed in para 14 as under :­

“14) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to 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 personal 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.”

14. The ratio in the case of Sanjay Chandra, cited supra, is applicable to the instant case as the accused is in custody since 27/08/2020. There cannot be a pre­trial detention in absence of exceptional circumstances to reject the bail plea of the applicantaccused. No such exceptional circumstances are brought on record by the prosecution. The apprehension that the applicant­accused would pressurize the witnesses or flee from justice can be taken care of by imposing stringent conditions on the applicant­ accused.

Resultantly, I proceed to pass following order.

O R D E R
1 Application is hereby allowed.

2 Applicant/accused Premchand Harichand Chauhan be enlarged on bail, in Crime No.374/2020 registered with Bhadrakali Police Station, Nashik on furnishing personal bond of Rs.25,000/­ with one or two solvent sureties in the like amount.

3 He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as dissuade them for disclosing such facts to the Court or to any police officer.

4 He shall not commit similar or any other offence and misuse the liberty granted by this court.

5 He shall not make any contact with informant and witnesses in any manner till completion of the trial.

6 He shall attend the court dates scrupulously and co­operate in progress of the trial.

7 He shall furnish his address proof, identity proof and mobile number and place of abode and also furnish the address and identity proof along with mobile number of two nearest relatives, residing in District Nashik.

8 He should attend the concerned police station on every Monday in between 11.00 am to 1.00 pm till completion of trial.

9 If the applicant­accused commits breach of any of the conditions mentioned above, the bail would be cancelled at the moment.

10. Bail before committal court if case is not committed.

(Dictated and pronounced in open court) Samarendra Digitally signed by Samarendra Prakashrao Prakashrao Naik Naik Nimbalkar Nimbalkar Date: 2020.12.15 13:26:56 +0530 (S.P.Naik­Nimbalkar )
15.12.2020. Additional Sessions Judge, Nashik.