One most important factor, which has not been
considered at all by the Additional Sessions Judge is of seriousness
of the crime alleged against the applicant. Seriousness of a crime is
not to be judged by referring to the punishment prescribed alone.
It must be gauged also by its enormity, its ramifications, its extent
and reach, its repercussions and impact on the society or larger
public interest. Crime alleged against the nonapplicant
by all
these parameters is very serious in nature. Prima facie, the
nonapplicant
has shown proclivity to deal in body parts of tiger,
the offence has transnational ramifications and above all has
irreversible adverse impact on the larger public interests.
This case, in my humble opinion, does not
lay down a principle that where the offence involved in the matter
is punishable upto 7 years of imprisonment and when custodial
interrogation is not required, the person accused of that offence
should be released on bail without considering other relevant
parameters. For exercising discretion regarding bail under Section
439 of the Criminal Procedure Code, the parameters as discussed at
length in the earlier paragraphs would also have to be considered
together with the observations made in the case of Arnesh Kumar.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION No.99 OF 2014
State of Maharashtra (Forest Department) Vs Shri Suraj Pal s/o. Jagmohan @ Chhacha,
CORAM
: S.B. SHUKRE, J.
DATE : 12 th DECEMBER, 2014 .
1. Heard Mr. Kartik N. Shukul, learned Special Public
Prosecutor for the Forest Department of State of Maharashtra and
Mr. R.J. Mirza, learned counsel for the nonapplicant.
2. This application filed under Section 439(2) of the
Criminal Procedure Code seeks cancellation of bail granted under
Section 439(1) of the Criminal Procedure Code on 30.7.2014 in
M.C.A. No.1332/2014 by Additional Sessions Judge, Nagpur.
3. The nonapplicant
came to be arrested by the State
Forest Department in Preliminary Offence Report (hereinafter
referred to as, “P.O.R.”) No.32/2013, registered for an offence
punishable under Section 51 read with Sections 9,39, 44, 49B and
52 of the Wild Life (Protection) Act, 1972 against several accused
persons including the nonapplicant.
The main allegation against
the nonapplicant
is that he is a trader, who deals in purchase and
selling of endangered wild animals including critically endangered
animal, the tiger, and is also a provider of funds and logistical
support required by poachers for killing precious wild animals and
extracting their skins and body parts for the purpose of their
trading in India and abroad. It is also alleged that the
nonapplicant
has links with international wild animal dealers and
thus the offences registered against the nonapplicant
and other
accused persons have transnational ramifications.
4. Learned Special Public Prosecutor submits that there is
available on record overwhelming evidence indicating prima facie
involvement of the applicant in the offences registered against him.
The material indicates that the applicant had financed the
operation for poaching of tigers in Maharashtra including one tiger
poached in Melghat forest situated in Amravati district, which is
the subject matter of the present crime. He also submits that for
this purpose, the present applicant had given an amount of
Rs.20,00,000/to
one of the accused Sarju through other
coaccused
Naresh and that after Naresh and Sarju purchased the
tigers skins, nails and bones from the poachers in Maharashtra,
Naresh and Sarju handed them over to the present applicant, who
personally collected the same by purchasing them. He further
submits that the link between the poachers operating in the forest
areas of Vidarbha region of Maharashtra, the middle men like
Naresh and Sarju and the present applicant, came to be revealed
when Naresh and Sarju were arrested at Delhi on 7.9.2013 while
they were travelling in a car bearing registration No.HR11E1001
and stated before Delhi Police about the involvement of the present
applicant and role played by him in initiating poaching of
endangered scheduled animal, the tiger in Maharashtra, providing
necessary support for completing the poaching operation and
rewarding the same by purchasing the skins and body parts of tiger
killed in the operation. He further submits that there have been
confessional statements of not only Naresh and Sarju, but also
present nonapplicant
which prima facie suggest that the nonapplicant
is the key accused without whose encouragement and
support, killing of endangered species of wild animals, especially
the tiger, would not take place. He further submits that the
confessional statements have also revealed that the crime prima
facie committed by the applicant has transnational ramifications.
5. Learned Special Public Prosecutor submits that in view
of the material placed on record, one can see that the crime
prima facie committed by the nonapplicant
is very serious and
threatens very survival of the society as without tigers forests
cannot survive and without forest, human society cannot sustain
itself. He, therefore, submits that the learned Sessions Judge,
while granting bail to the applicant ought to have considered the
seriousness of the crime appropriately, but unfortunately, that is
not the case. He also submits that the learned Sessions Judge has
ignored other vital aspects of the whole issue and they relate to
possibility of the nonapplicant
fleeing from justice and his
tampering with the evidence and thus interfering with the course
of justice. In support, he points out the statement of the coaccused
Sarju dated 26.9.2013, wherein there is a mention about
the threat issued to him by the nonapplicant.
Learned Special
Public Prosecutor, therefore, submits that bail granted to the nonapplicant
be cancelled. He places his reliance upon the case of
Kanwar Singh Meena vs. State of Rajasthan and another,
reported in (2012)12 SCC 180, in support of his said submissions.
6. Learned counsel for the nonapplicant
has vehemently
opposed the application. He submits that although learned
Sessions Judge has found presence of material prima facie
indicating involvement of the applicant in the crime alleged against
him, learned Sessions Judge has properly considered the necessity
of keeping the applicant in jail particularly in a crime where
maximum punishment provided is of 7 years of imprisonment. He
submits that paramount considerations for grant of bail are
seriousness of the crime, punishment provided for the alleged
crime and necessity of keeping the accused behind the bars in the
sense whether there is any possibility of the applicant not making
himself available for trial if released on bail and whether there is
likelihood of the applicant tampering with the prosecution
evidence. He submits that the law requires the Courts to balance
these considerations against the issue of personal liberty of the
accused as afterall an accused facing a trial is presumed by law to
be innocent and provisions relating to grant of bail cannot be used
by the Courts to inflict a pretrial
punishment even when there is a
presumption of innocence of the accused till he is found guilty. He
submits that these parameters have been thoughtfully considered
by the learned Additional Sessions Judge in the light of the
material available on record and imposing stringent conditions, the
nonapplicant
has been appropriately granted bail in this crime.
In support, he has placed his reliance upon the law laid down by
the Hon’ble Apex Court in the cases of Bhagirathsinh Judeja vs.
State of Gujarat, reported in AIR 1984 Supreme Court 372(1)
and Sanjay Chandra vs. Central Bureau of Investigation,
reported in (2012) 1 SCC 40.
7. In the case of Sanjay Chandra, the Hon’ble Apex Court
has emphasized upon the need for balancing the valuable right of
liberty of an individual and the interest of the society in general
while holding that refusal of bail is a restriction on the personal
liberty of the individual guaranteed under Article 21 of the
Constitution and observed thus :
“The provisions of CrPC confer discretionary
jurisdiction on criminal courts to grant bail to the
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 the valuable right of liberty of an
individual and the interest of the society in general.”
8. In Sanjay Chandra Hon’ble Apex Court also considered
it’s various judgments laying down the basic parameters required to
be considered for granting or refusing the bail. They can be stated
in nutshell as, the nature of accusations, the nature of evidence in
support thereof, the severity of punishment which conviction will
entail, the character, behavior, means and standing of the accused,
circumstances which are peculiar to the accused, reasonable
possibility of securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being tampered with,
larger interest of the public or the State and similar other
considerations. Hon’ble Supreme Court also dealt with primary
purposes of bail when it observed in paragraph 40 thus :
“The grant or refusal to grant bail lies within the
discretion of the court. The grant or denial is
regulated, to a large extent, by the facts and
circumstances of each particular case. But at the
same time, right to bail is not to be denied merely
because of the sentiments of the community against
the accused. The primary purposes of bail in a
criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of
keeping him, pending the trial, and at the same time,
to keep the accused constructively in the custody of
the court, whether before or after conviction, to
assure that he will submit to the jurisdiction of the
court and be in attendance thereon whenever his
presence is required.”
9. In the case of Bhagirathsinh Judeja (supra), it was held
by Apex Court that even where a prima facie case is established,
the only material consideration for cancelling the bail would be
whether the accused is readily available for trial and whether he is
likely to abuse the discretion granted in his favour by tampering
with evidence, as approach of the Court in the matter of bail
should not be that the accused is detained by way of punishment.
10. In the later cases, however, some modification of
principles governing discretion of Courts in the matter of
cancellation of bail has been seen.
11. In the recent case of Kanwar Singh Meena (supra) the
Hon’ble Supreme Court laiddown
principles for grant of bail as
well as for cancellation of bail. While the principles for grant of
bail were the same as in Sanjay Chandra, the principles for
cancellation of bail were in addition to those in Bhagirathsinh
Judeja. It held that while cancelling the bail under Section 439(2)
of the Code, the primary considerations are whether the accused is
likely to tamper with the evidence or attempt to interfere with due
course of justice or evade the due course of justice, but that is not
all. It also held that if the Court granting bail ignores relevant
materials indicating prima facie involvement of the accused or take
into account irrelevant material, the High Court or the Sessions
Court would be justified in cancelling the bail, as such orders are
against the wellrecognized
principles underlying the power to
grant bail. Such orders have been termed by the Hon’ble Apex
Court as legally infirm, vulnerable and leading to miscarriage of
justice. The Hon’ble Apex Court also held that the High Court or
the Sessions Court is bound to cancel such orders particularly when
they are passed releasing the accused prima facie involved in
heinous crimes because ultimately they may result in weakening of
the prosecution evidence and may have adverse impact on the
society. The relevant observations appearing in paragraph 10 are
reproduced thus :
“While cancelling the bail under Section 439(2) of
the Code, the primary considerations which weigh
with the court are whether the accused is likely to
tamper with the evidence or interfere or attempt to
interfere with the due course of justice or evade the
due course of justice. But, that is not all. The High
Court or the Sessions Court can cancel the bail even
in cases where the order granting bail suffers from
serious infirmities resulting in miscarriage of
justice. If the Court granting bail ignores relevant
material indicating prima facie involvement of the
accused or takes into account irrelevant material,
which has no relevance to the question of grant of
bail to the accused, the High Court or the Sessions
Court would be justified in cancelling the bail. Such
orders are against the wellrecognised
principles
underlying the power to grant bail. Such orders are
legally infirm and vulnerable leading to miscarriage
of justice and absence of supervening circumstances
such as the propensity of the accused to tamper
with the evidence, to flee from justice, etc. would
not deter the court from cancelling the bail. The
High Court or the Sessions Court is bound to cancel
such bail orders particularly when they are passed
releasing the accused involved in heinous crimes
because they ultimately result in weakening the
prosecution case and have adverse impact on the
society. Needless to say that though the powers of
this Court are much wider, this Court is equally
guided by the above principles in the matter of
grant or cancellation of bail.”
12. Similar is the law laid down by the Hon’ble Apex Court
in the case of Ranjit Singh vs. State of M.P. and others, reported
in 2013(12) SCALE 190, wherein, after considering the essential
parameters guiding the exercise of discretion of the Sessions Court
or the High Court in the matters of bail, the Apex Court observed
that these parameters must be considered appropriately before
granting bail and if they have not been considered, the order of
bail would be liable to be set aside and cancelled.
13. Now it would have to be seen whether or not the
learned Additional Sessions Judge exercised his discretion in
granting bail to the nonapplicant
by following the aforestated
parameters applicable to exercise of discretion of granting or
refusing bail.
14. So far as concerned the aspect of existence of
reasonable grounds for believing that the accusations made against
the nonapplicant
are true, as held in the case of Prahlad Singh
Bhati vs. NCT Delhi and another, (2001) 4 SCC 280, I must say
that perusal of the confessional statements of the applicant and his
coaccused
reveal that there is sufficient material to prima facie
find that the allegations made against the nonapplicant
apparently
constitute an offence punishable under Section 51 read with other
relevant sections, such as Sections 9, 39, 44, 49B
and 52 of the
Wild Life (Protection) Act, 1972. Confessional statements, in
particular, of the coaccused
Sarju and the nonapplicant
himself
are sufficient to indicate that, prima facie the offence alleged
against the applicant is made out. They prima facie show that the
nonapplicant
was not only in constant touch with the other
coaccused
involved in connection with wild life offences, but the
nonapplicant
also gave his active support by making available
funds and also ensuring that the efforts of hunters do not go waste
in the sense that hunters were sufficiently rewarded by purchasing
the skins, bones and claws of tigers. Now, it is well settled law that
the confessional statements made by the accused in forest or wild
life offences are not hit by Section 25 of the Evidence Act as a
forest officer is not a Police Officer within the meaning of
Section 25. This view taken by the learned Single Judge of this
Court as early as the year 1994 in the case of Emerico D’Souza vs.
State, through the Deputy Conservator of Forests, reported in
1995 Forest Law Times 72 has been reiterated with approval by
the Division Bench of this Court in the year 2005 in the case of
Sardarkhan s/o. Khalilkhan Pathan vs. Range Forest Officer,
Yavatmal and others, reported in 2006 (1) Mh.L.J. 606.
15. Of course, learned counsel for the nonapplicant
would
question consideration of the confessional statements of the other
coaccused
on the ground that in criminal law confessional
statements of the coaccused
are irrelevant for reaching any
conclusion about involvement of the other accused persons in the
crime alleged against them. This may be true in case of other
offences wherein confessional statements are made by the coaccused
before a Police Officer investigating the case. But, once it
is found by following a consistent view that the Range Forest
Officer is not a Police Officer, a confession made before the Range
Forest Officer would not be a confession under Section 25 of the
Evidence Act and would at best be akin to an admission or former
statement of a witness suggesting an inference as to a fact in issue
or relevant fact and, therefore, it can be read as a statement against
the coaccused,
as long as it discloses a relevant fact. Thus, even
the confessional statements of the coaccused
in a crime like the
present can be considered and, therefore, I find no substance in the
said argument of learned counsel for the nonapplicant.
16. Learned Additional Sessions Judge in his order dated
30th July, 2014 has not specifically observed anything about the
existence of any reasonable grounds for believing that the
accusations made against the nonapplicant
are genuine. The
learned Additional Sessions Judge appears to have considered only
the severity of the punishment as forming a relevant backdrop to
the two factors, namely, possibility of fleeing from justice and
possibility of tampering with evidence, if released on bail, which he
found must be taken into account for exercising discretion
regarding bail. It appears that the learned Additional Sessions
Judge did not think it fit to consider other important parameters
such as seriousness of crime, larger public interests involved,
impact of crime on the society and so on. Learned Additional
Sessions Judge appears to have got an impression that maximum
punishment being of only 7 years of imprisonment, the offence has
been alleged to be committed in respect of the tiger, a wild animal
specified in schedule one and was committed in a national park,
the offence was not so serious and, therefore, only two factors,
namely, possibility of not being available for trial and thwarting the
course of justice, if granted bail, were relevant and accordingly
considered them and exercised discretion of bail in favour of nonapplicant.
I must say that the course adopted by the learned
Additional Sessions Judge is not in consonance with the guiding
principles laid down by the Hon’ble Apex Court in many of its
judgments, which have been discussed in details in earlier
paragraphs. That apart, some of the relevant factors such as
behavior of the nonapplicant
and possibility of thwarting the
course of justice if released on bail have been considered in
ignorance of the material available on record, by the Additional
Sessions Judge thereby making his order legally infirm, vulnerable
and leading to miscarriage of justice. Therefore, it would be
necessary for this Court to consider these relevant factors now.
17. One most important factor, which has not been
considered at all by the Additional Sessions Judge is of seriousness
of the crime alleged against the applicant. Seriousness of a crime is
not to be judged by referring to the punishment prescribed alone.
It must be gauged also by its enormity, its ramifications, its extent
and reach, its repercussions and impact on the society or larger
public interest. Crime alleged against the nonapplicant
by all
these parameters is very serious in nature. Prima facie, the
nonapplicant
has shown proclivity to deal in body parts of tiger,
the offence has transnational ramifications and above all has
irreversible adverse impact on the larger public interests.
18. There is now available sufficient scientific knowledge of
which judicial notice can be taken and it shows that tiger is of
paramount importance for maintaining the pristine health of an
ecosystem, so essential for the very survival of mankind. Tiger is
considered to be a symbol of wilderness and wellbeing
of an
ecosystem. Tiger constitutes the top carnivore in an ecosystem and
is at the apex of the food chain, which is having a pyramidical
structure with plants and microbes, the food producers, forming it’s
base and other life forms such as insects, reptiles, birds, herbivores
etc., the food consumers, forming upper layers, with tiger, the
bigger food consumer, at the top. The removal of top carnivore
from an ecosystem will lead to relative abundance of herbivores
and other species within a guild. Tiger is not just a carnivore,
which feeds on smaller animals, but a large predator and its
presence in a forest ecosystem keeps number of bigger herbivores
such as deer, bluebull,
bison and so on within limits. If number of
herbivores increases beyond the natural limits of an ecosystem,
there would be overeating of plants and tree regeneration and seed
dispersal will be affected thereby depleting green cover which will
have cascading effect upon other species such as birds, reptiles,
insects and so on leading to their removal which will halt
plantgrowth
itself as these smaller species contribute to not only
seed dispersal but also act as natural fertilizers and pest controllers
for plants.
19. It is now wellknown
that abundance of trees in forests
also serves such important functions as carbon sequestration i.e.
capturing carbon from atmosphere and converting it into solid form
such as trees and vegetation, maintaining hydrological balance,
protecting human society from natural disasters, soil erosion,
maintaining medicinal plant and genetic diversity, playing a pivotal
role in maintaining water cycle and acting as rich sources of pure
air and water for the mankind. Carbon sequestration is extremely
important from the view point of reducing carbon footprint of a
nation and is considered a major contribution towards lowering
down global warming brought about by green house or carbon
dioxide emitting gases. It also helps in strengthening the economy
of a nation, apart from increasing its world image by reducing its
carbon footprint as it would show that the nation does not leave
behind a big bad footprint created by burning fossil fuels like coal,
oil and natural gas which emit huge amount of carbon dioxide and
other toxic gases into the atmosphere.
20. In other words, a healthy forest ecosystem determines
sustainability of life on earth itself and since tigers are so important
a bench mark of a healthy forest ecosystem, the habitats where
wild tigers abound, are considered to be extremely high value
ecosystem.
21. Apart from the aforestated
reasons delineating the
importance of tiger in a forest, the presence of tiger in Indian forest
which has become almost extinct in its previous habitats situated in
other parts of planet earth is a matter of national pride. The tigers
also boost wild life tourism and are part of our rich cultural
heritage. Therefore, their extinction would mean depriving future
generations of Homo Sapiens the pleasures of seeking some change
and some reprieve from the daily humdrum of life in forests and
also the benefits of our folkways and mores.
22. From such a view point as stated above, which is so
essential to take in the larger public interest and to ensure
continuity of life, one can see the seriousness involved in hunting
and killing tigers. However, the learned Additional Sessions Judge
has not considered this aspect of the matter at all.
23. There are some factors which have been considered by
the learned Additional Sessions Judge, but the consideration made
is in completely ignorance of relevant material available on record
and thus it has led to perverse prima facie findings being recorded
by the learned Additional Sessions Judge.
24. The learned Additional Sessions Judge has found that
since the nonapplicant
has four sons, the nonapplicant
could be
said to be having deep roots in the society and, therefore, there
was no likelihood of his fleeing away from justice. Learned
Additional Sessions Judge has briefly mentioned about the
economic pursuits of each of the four sons of the nonapplicant
and
has found that they sufficiently indicate that the sons have the
ability to keep the nonapplicant
rooted in society. This reasoning,
I must say is flawed. When a person has sons who are financially
independent, a person would have no responsibility to look after
them and, therefore, may think to be more free to do what he likes
or wants to do. Such sons are less likely to act as anchors being
independent from the nonapplicant
and that too for a person
accused of committing serious crime not just once but several times
over. Undoubtedly, wild life trade is a lucrative business across the
world and has transnational ramifications. When stakes involved
in the crime are very high, the lure of money and thrill of the act
become too powerful to be reined in by moorings of sons, who are
grown up and independent. Therefore, it cannot be said that there
would be no possibility of the nonapplicant
fleeing from justice in
the present case.
25. Another glaring infirmity in the order of the learned
Additional Sessions Judge is that it has been remarked that
apprehension expressed by the prosecution regarding tampering
with the prosecution evidence, can be taken care of by imposing
stringent conditions. In fact, in the instant case, the stage of
nurturing of apprehension has already been crossed, as rightly
submitted by learned Special Public Prosecutor. The
supplementary statement dated 26.9.2013 of the coaccused
Sarju
alias Suraj Bhan prima facie shows that when Sarju as well as nonapplicant
were detained in jail at New Delhi in another crime
registered against them at Delhi in respect of wild life offences,
which is likely to be having some linkage with the present crime,
Sarju was threatened by the nonapplicant
that if he had not
named nonapplicant
in the crime, nonapplicant
would have
ensured his release and since Sarju was instrumental in getting
nonapplicant
arrested, the nonapplicant
would see him. This
would prima facie show that nonapplicant
has an inclination to
influence the course of justice which may increase, if released on
bail.
26. Of course, learned counsel for the nonapplicant
states
that the supplementary statement is of doubtful nature as it is in a
question answer form, and the question No.5 answer to which
contains the alleged threat, was in a leading form thereby
suggesting that the Forest Department was bent upon fabricating
material against the nonapplicant
so as to deny him bail. He also
states that even otherwise statement of coaccused
cannot be used
against the nonapplicant.
As regards, the second objection, I have
already discussed the settled legal position in this regard and,
therefore, it cannot be said that the statement of the coaccused
disclosing a relevant fact could not be read against the nonapplicant
in a crime like the present. As regards the first objection,
I find that the question does not appear to be really in a leading
form and appears to be framed in a manner so as to obtain relevant
information from Sarju in continuation of the answers given by him
earlier. In question No.5 there are words such as “D;k cksyk ?” (what
was said) and “vkSj D;ksa ?” (and why). These words, according to
the learned counsel for the nonapplicant
suggest an attempt on
the part of the Forest Department officials to get the nonapplicant
speak what they wanted him to speak and, therefore, there is a
doubt about the alleged threat given by the nonapplicant.
I do not
agree for the reasons given earlier. But even if it is presumed for a
moment that the question worded in the afore stated term is
suggestive of some answer, it may not be proper at this stage to
draw any such inference, in the absence of detailed evidence, that
the Forest Department had already tutored Sarju in making a
statement about issuance of threat by nonapplicant.
It is quite
likely that Sarju himself may have disclosed to the Forest Officials
the threat given to him by the nonapplicant
and since his
statement was being recorded in question answer form, the Forest
Officer may have framed the said question the way it has been
framed keeping in view what Sarju had already stated. Besides, at
this stage there is no material to prima facie indicate that Sarju was
coerced, lured or influenced into making said statement. He could
have very well replied the question by giving some negative
answer. All these possibilities would emerge for their appropriate
evaluation only when detailed evidence is available before the
Court and till that happens, one would have to go by the prima
facie impression of the statement and which is that nonapplicant
is
not a person who can be, at this stage, believed to be the one who
would not possibly thwart the course of justice. This threat also
prima facie discloses such behavior of the nonapplicant
as is not
conducive to hold a fair trial in the matter and, therefore, would
have to be considered as a factor relevant for refusing bail to the
nonapplicant.
As regards the old age of the nonapplicant,
there
is no material available showing that it has made him weak or
infirm and so, this ground would also not be available to the nonapplicant.
27. Thus, it can be seen that the discretion exercised by the
learned Additional Sessions Judge in granting bail to the nonapplicant
is not only in ignorance of the relevant material available
on record, but also against the well settled principles of law. At the
cost of repetition, I would say, most important parameters
governing exercise of discretion in bail matters have either been
not considered or considered in ignorance of relevant material
thereby leading to an arbitrary and legally infirm order and,
therefore, I am obliged in law to cancel the bail granted to the nonapplicant
in exercise of power under Section 439(2) of the of the
Criminal Procedure Code.
28. Learned Additional Sessions Judge has observed that
the learned Magistrate who rejected bail twice to the nonapplicant
did not go through the observations of the Hon’ble Apex Court in
the case of Arnesh Kumar vs. State of Bihar and another,
reported in 2014(8) SCALE 250, while rejecting the bail to the
nonapplicant
as the offence involved in this P.O.R. is punishable
upto 7 years of imprisonment only.
29. The case of Arnesh Kumar deals with restrictions and
limitations on the powers of Police to make arrest without warrant
as contained in Sections 41 and 41A of the Code of Criminal
Procedure. It lays down that unless conditions prescribed in
Section 41(1)(b) are satisfied, a Police Officer should not effect
arrest and if he makes an arrest, further detention of a person
should not be authorized by a Magistrate unless and until those
conditions are fulfilled. This case, in my humble opinion, does not
lay down a principle that where the offence involved in the matter
is punishable upto 7 years of imprisonment and when custodial
interrogation is not required, the person accused of that offence
should be released on bail without considering other relevant
parameters. For exercising discretion regarding bail under Section
439 of the Criminal Procedure Code, the parameters as discussed at
length in the earlier paragraphs would also have to be considered
together with the observations made in the case of Arnesh Kumar.
30. In the circumstances, this application deserves to be
allowed.
31. The application is allowed.
32. The order dated 30th July, 2014, passed by the learned
District Judge5
and Additional Sessions Judge, Nagpur, granting
bail to the nonapplicant
is hereby set aside.
33. The bail granted to the nonapplicant
is hereby
cancelled.
34. The bail bonds, if furnished, are cancelled and the
applicant be taken in custody in the present crime as per law.
35. However, liberty is granted to the nonapplicant
to
move fresh application for grant of regular bail at appropriate stage
and, if filed, same shall be decided in accordance with law.
36. At this stage, learned counsel for the applicant has
prayed for staying the order as the nonapplicant
intends to move
the Hon'ble Apex Court for challenging the order for a period of
two weeks. The prayer has been opposed by the Applicant/State.
37. However, considering the fact that the applicant has
been granted bail on 30 July 2014 and has been till today on bail.
10 days’ time can be granted to the nonapplicant
for taking
necessary steps in order to challenge this order. Accordingly, the
effect and operation of the order is stayed till 22nd December, 2014.
JUDGE
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