LAW FINDER

Submitted By: Adv. Tejas Kunsavlikar

Shri Nagesh Ram v. The State (Calcutta)(DB)(Circuit Bench) Law Finder Doc Id # 753578
2016(1) CalLJ 487 : 2016(4) Cal. H.C.N. 733
CALCUTTA HIGH COURT
(DB)(Circuit Bench)
Before :- Indra Prasanna Mukerji and Arijit Banerjee, JJ.
C.R.M. No. 002 of 2016, decided on 3.2.2016. D/d. 5.2.2016.
Shri Nagesh Ram - Petitioner
Versus
The State - Respondent
For the Petitioner :- Arul Prasanth and S. Ajith Prasad, Advocates.
For the State :- Tulsi Lall, Advocate.
A. Criminal Procedure Code, 1973 Section 439 Bail is the rule and jail is the exception - If
the petitioner is kept as a prisoner for any appreciable length of time and ultimately if
his appeal succeeds and he is set free, nobody would be able to return to him, the time
that he spent behind the bars - On the other hand, if he is released on bail and
ultimately his appeal fails, he can be re-arrested and put back in prison to serve his
sentence - Needless to say that if he jumps the bail or misuses his interim freedom in
any manner, his bail can be cancelled and he can be taken into custody.
[Para 26]
B. Criminal Procedure Code, 1973 Section 439 Indian Penal Code, 1860 Section 300 Bail
Murder - It took more than 20 years to convict petitioner and other persons - During this
entire period, petitioner was out on bail - No allegation against him of jumping bail or
misusing his freedom - This good conduct of the petitioner, while on bail, is a factor in
his favour - Six of the co-accused were convicted under Section 307 of the Indian Penal
Code have been already granted bail by this Court - Petitioner flatly denies culpability of
his act - Petitioner stated that if counter case was considered together with prosecution
case, he would, must probably, have been acquitted, as having rightly exercised his right
of self defence - Serious allegation of irregularity in conduct of trial, which has been
prima facie made out is also a very relevant factor - Held, petitioner deserved to be
enlarged on bail - Petitioner released on bail.
[Paras 9 to 13]
Cases Referred :
Angana v. State of Rajasthan, (2009) 3 SCC 767.
G. Narasimhulu Public Prosecutor v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978
Supreme Court 429.
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Siddharth Vashisht @ Manu Sharma v. The State (N.C. T. of Delhi), AIR 2008 Supreme Court 2889.
State of M.P. v. Mishrilal (Dead) Rasid, 2003(9) SCC 426.
State of U.P. v. Poosu, AIR 1976 Supreme Court 1750.
JUDGMENT
Indra Prasanna Mukerji, J. - This is an application by the convict in his appeal, for bail. He was
convicted for the offence of murder on 14th October, 2015 and handed down the sentence of life
imprisonment.
2. The offence took place on 11th August, 1995. The petitioner was all along on bail.
3. There were six other co-accused. All were convicted on the same day under Section 307 of the
Indian Penal Code. All six of them are out on bail, pursuant to orders passed by this Court in this
appeal.
4. The question is whether the petitioner should also be granted bail.
5. Mr.Prasanth, learned Counsel for the petitioner argues that he has a very strong counter case
against the other convicted persons. Most importantly, the victim was killed in exercise of the
petitioners right of self defence. He also submits that there was gross irregularity in the conduct of
the trial. The learned Sessions Judge ordered on 19,h June, 2008 that the trial of both the cases
were to be simultaneous. However, at the trial, the cases were not tried simultaneously. The two
cases were tried separately vitiating the trial, as contended by Mr. Prasanth.
6. Mr.Tulsi Lall, learned Public Prosecutor very seriously opposed the grant of bail to the petitioner.
He said that the petitioner was held guilty of a very serious offence of murder by gunshot in broad
daylight. If he was enlarged on bail, a wrong signal would go out to the public. He also added that
in the case involving the petitioner, he did not lead any evidence although the prosecution
examined 16 witnesses.
7. Now, let us have a look at the law.
8. In Siddharth Vashisht @ Manu Sharma v. The State (N.C. T. of Delhi) reported in AIR
2008 Supreme Court 2889 , cited by Mr. Lall the Supreme Court held that once a person has been
convicted, the appellate Court should proceed on the basis that he was guilty. In State of M.P. v.
Mishrilal (Dead) and others Rasid and others reported in 2003(9) SCC 426 , cited by Mr.
Prasanth the Supreme Court emphasised the importance of trying the case and the counter case
together. Again in Sidharth Vashisht @ Manu Sharma v. The State (N.C.T. of Delhi) referred
to above, the Supreme Court indicated the various factors which had to be considered by the Court
in granting bail in an appeal from a conviction under Section 302 of the Indian Penal Code. The
dictum of the Supreme Court is as follows:
"32. In the above, it has been observed that once a person has been convicted, normally, an
appellate Court will proceed on the basis that such person is guilty. It is no doubt true that
even thereafter, it is open to the appellate Court to suspend the sentence in a given case by
recording reasons. But it is well settled, as observed in Vijay Kumar that in considering the
prayer for bail in a case involving a serious offence like murder punishable under Section 302,
I.P.C., the Court should consider all the relevant factors like the nature of accusation made
against the accused, the manner in which the crime is alleged to have been committed, the
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gravity of the offence, the desirability of releasing the accused on bail after he has been
convicted for committing serious offence of murder, etc. It has also been observed in some of
the cases that normal practice in such cases is not to suspend the sentence and it is only in
exceptional cases that the benefit of suspension of sentence can be granted. "
9. Whether the case and the counter case were not tried together is a serious matter and in my
opinion a highly relevant factor in an appeal. Whether the accused was given the full opportunity
of availing of the plea of self defence, is the question that follows because in the trial against the
petitioner he did not adduce any evidence to establish self defence. But he led that evidence in the
counter case, it was argued. Since the case against the petitioner was tried separately, the evidence
in the counter case was not considered by the Court, was the case of the petitioner.
10. After all, the incident took place on 11th August, 1995. It took more than 20 years to convict the
petitioner and the other persons. During this entire period, the petitioner was out on bail. There is
no allegation against him of jumping bail or misusing his freedom. This good conduct of the
petitioner, while on bail, is a factor in his favour.
11. Six of the co-accused were convicted under Section 307 of the Indian Penal Code. After admission
of the appeal, at various stages, they have been granted bail by this Court.
12. The petitioner flatly denies the culpability of his act. He says that if the counter case was
considered together with the prosecution case, he would, must probably, have been acquitted, as
having rightly exercised his right of self defence.
13. The serious allegation of irregularity in the conduct of trial, which case in my opinion has been
prima facie made out is also a very relevant factor. Hence, in my view, the petitioner deserved to be
enlarged on bail following the ratio in Siddharth Vashisht @ Manu Sharma v. The State
(N.C.T. of Delhi) .
14. Upon the petitioner furnishing a personal bond of Rs. 20,000/- along with two surety bonds of Rs.
10,000/- each to the satisfaction of the Chief Judicial Magistrate, Port Blair, he will be granted bail.
15. He will report at least once in a week to the Station House Officer, Pahargaon, Police Station or
the Inspector In-Charge of the any Police Station under whose jurisdiction he may be subsequently
resident.
16. He will not leave these islands without the leave of the Court.
17. A copy of this order and the photograph of the petitioner will be sent by the police authorities to
the authorities at each exit point so as to ensure that he does not leave the islands.
Banerjee. J.: I have had the advantage of hearing my learned brother delivering his judgment and
order in this case and I am, in principle, in respectful agreement with the same. However, I take
the opportunity to add a few words.
19. A case was instituted against the petitioner in or around August, 1995. The judgment and order,
whereby the petitioner was convicted, was pronounced on 14th October, 2015 i.e. after protracted
trial which lasted over twenty years. All throughout the petitioner was on bail and the petitioner is
in custody since 14,h October, 2015 and has now applied for bail pending disposal of the appeal.
20. In the case of Angana v. State of Rajasthan, (2009) 3 SCC 767 , the Hon'ble Supreme Court
observed that when an appeal is preferred against conviction in the High Court, the High Court has
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ample power and discretion to suspend the execution of sentence, but that discretion has to be
exercised judiciously depending on the facts and circumstances of each case. While considering the
suspension of execution of sentence, each case is to be considered on the basis of nature of the
offence, manner in which occurrence had taken place, whether in any manner bail granted earlier
had been misused. There is no straitjacket formula which can be applied in exercising the
discretion. The facts and circumstances will govern the exercise of judicial discretion while
considering the application filed by the convict under section 389 of the Code of Criminal Procedure.
21. In the instant case, the offence of which the petitioner has been convicted is no doubt of a very
grave in nature i.e. murder. However, there is no rule of law that a person convicted of murder
cannot be enlarged on bail pending disposal of his appeal against the conviction.
22. The entire gamut of facts should be taken into consideration. The petitioner in this case is a
Government servant. He has a family. He has children studying in school. He is a middle-age man,
aged 53 years. He never jumped or misused the bail during the long period of 20 years. There is no
allegation against him that he tried to tamper with evidence or tried to abscond. These are all facts
which are in favour of the petitioner.
23. The circumstance in which the murder took place is also to be considered. There appears to
have been firing and counter firing. The petitioners case is one of self defence. Having perused the
judgement and order under appeal, I am prima facie, of the view that the petitioner has an
arguable case.
24. The petitioners learned Counsel relied on a decision of the Hon'ble Supreme Court in the case of
State of U.P. v. Poosu reported in AIR 1976 Supreme Court 1750 . At paragraph 27 of the
judgment, the Hon'ble Supreme Court observed that as soon as the High Court on perusing a
petition of appeal against an order of acquittal considers that there is sufficient ground for
interfering and issuing process to the respondent, his status as an accused person and the
proceedings against him, revive. The question of judging his guilt or innocence in respect of the
charge against him, once more becomes sub judice. This observation of the Hon'ble Apex Court
would apply mutatis mutandis to a case of appeal against an order of conviction. The petitioners
appeal against conviction having been admitted, the question of his guilt or innocence again
become sub judice. The order of the trial Court ceases to be final. Hence, there cannot be any
presumption of guilt on the part of the petitioner when his application under section 389 of Code of
Criminal Procedure is considered by this Court.
25. Personal liberty is a very valuable thing for anybody. The liberty to move around freely is a
fundamental right of the citizen of this Country. Such liberty is not be lightly interfered with or
curtailed.
26. Bail is the rule and jail is the exception. If the petitioner is kept as a prisoner for any
appreciable length of time and ultimately if his appeal succeeds and he is set free, nobody would be
able to return to him, the time that he spent behind the bars. On the other hand, if he is released
on bail and ultimately his appeal fails, he can be re-arrested and put back in prison to serve his
sentence. Needless to say that if he jumps the bail or misuses his interim freedom in any manner,
his bail can be cancelled and he can be taken into custody. However, his past conduct does not
indicate that he is likely to do any such thing.
27. It may also be noted that in the case of G. Narasimhulu Public Prosecutor v. Public
Prosecutor, High Court Of Andhra Pradesh reported in AIR 1978 Supreme Court 429 , the
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Submitted By: Adv. Tejas Kunsavlikar
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Hon'ble Supreme Court took note of the fact that a man on bail has a better chance to prepare or
present his case than one remanded in custody.
28. In the facts of the case, it does not appear to me that enlarging the petitioner on bail shall
expose the society to any real danger.
29. For the reasons as aforesaid, I agree with my learned brother that the petitioner should be
released on bail on the terms and conditions indicated in the judgment and order passed by my
learned brother.
Let a copy of the judgment and order be sent to the Chief Judicial Magistrate, Port Blair to act in
accordance with this judgment and order.
.